Debra Simms - Simms Law Firm

If you’ve ever experienced the passing of a loved one, you’re likely to be familiar with probate. Probate can be a challenging and time-consuming process, but there are methods to help avoid it altogether.

If you’re looking to create an estate plan, a probate attorney can help you with a revocable living trust. It can help avoid probate in Florida and create a more peaceful transition for your family at your passing.

What Is Probate?

Probate is a court-supervised process allowing for the identification and distribution of a person’s property and assets after they’ve passed. Additionally, it helps the individual responsible for the person’s estate, called the personal representative, achieve other tasks, including paying off creditors and taxes.

When an individual passes away with an estate plan, including a will but no trust, probate becomes necessary.

What Is a Revocable Living Trust?

If you’re looking to set up a trust, there are many to choose from. Revocable living trusts are among the most common.

A revocable living trust is a document you create during your lifetime that helps create a plan for your money and assets after your passing. It helps distinguish who your beneficiaries are and who gets what when you die.

A revocable trust is revocable because you can modify or revoke it at your discretion, as opposed to an irrevocable trust that cannot be changed or revoked.

When you create a trust, you retitle all of your assets in the name of the trust. You select a trusted individual, a trustee, to manage and distribute those assets to your named beneficiaries once you’ve passed.

With a revocable trust, you, the grantor, still have access to your assets, but they’re protected in case of your death.

Benefits of a Revocable Trust

There are many advantages to a revocable trust, the most important of which is the grantor’s ability to modify the terms of the trust or void it altogether at any time.

While many are familiar with wills, revocable trusts can offer similar protections but better. A will dictates who gets what at your passing but doesn’t go into effect until you’ve passed. When you have a revocable trust, your assets are protected even if you remain living but become incapacitated.

Avoiding Probate with a Revocable Living Trust

Another important benefit to having a revocable trust is its ability to help bypass the probate process.

Even if you have a will, it does not guarantee it won’t need to be probated at your death. When you have a revocable trust, the trustee will be able to transfer your assets to the designated beneficiaries without the need for probate.

Probate can be a long, drawn-out, and sometimes contentious process for many families. Having a revocable trust can help avoid the need for probate, saving valuable time and money.

A Probate Attorney in Daytona Beach Can Help You

If you’re looking to set up a revocable trust or your loved one has passed, and you need assistance with probate, a knowledgeable lawyer can provide top-quality legal assistance.

Estate planning and the probate process can be confusing and stressful. Let a Daytona Beach probate attorney help you.

Formal administration and summary administration are two forms of probate used when a deceased person’s assets do not have a “payable on death” provision, joint owner, or beneficiary designation.

Summary administration is only available when the total value of the assets subject to probate is less than $75,000 or if the decedent has died more than two years before the filing. It can also be used when the only asset is a Florida homestead. Formal administration is used for all other estates or if a personal representative, or executor, is necessary.

Considerations for Choosing Summary vs. Formal Probate

Summary probate has a shorter time frame than formal administration — an average of 3-6 months vs. 6-18 months — and typically costs less. It’s also less complicated, and the probate court doesn’t require as much documentation as a formal administration.

However, with a summary administration, a personal representative is not appointed by the court. Often times, a life insurance company or retirement plan will require a personal representative even when the assets are below $75,000.

Formal probate, also known a full administration is a lengthier process and requires more documentation than summary administration.

In formal administration, the court will appoint the personal representative who is granted the authority to gather information about any debts or assets belonging to the deceased.

The personal representative is issued Letters of Administration, which gives them access to banking and other financial information. They may also deal with creditors on behalf of the estate and negotiate any claims they deem invalid or questionable.

Formal administration takes longer than summary, costs more, and requires more steps to settle the estate.

Which Method Is Better?

Determining the correct course of access to settle the estate depends on the total value of the deceased’s assets, any debts, and whether there is pending litigation against the estate’s assets.

What is a Valid Will in Florida?

A will is a document that determines who receives a person’s property when they pass away. Florida law requires that a will must be signed by the testator (the person writing the will) and two witnesses to be enforceable. The testator must either sign in front of the witnesses or tell the witnesses that he or she previously signed the will. The witnesses must sign together in the presence of each other and in the presence of the testator. The rules for the execution of wills are found in Florida Statute 732.502.

It is not necessary for a will to be notarized for the document to be valid. Notarized wills are preferred as they are easier to admit to probate court. A notarized will is referred to as a “self-proved will.” When a will is not notarized, a witness to the will must make a statement to the probate court confirming that they witnessed the will. When a will is notarized, a witness statement is not required. It is easier to have a will notarized.

What Happens When You Die in Florida Without a Will?

When a person dies without a will, their assets go to their spouse and/or closest relatives. Florida Statute sections 732.102 and 732.103 specifically determine how a decedent’s property is divided when they die without a will under the 2022 Florida Probate Rules. This process is referred to as intestate succession.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more.

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

What Property and Assets Go Through Probate in Florida?

Any asset owned by someone who has passed away is subject to probate in Florida. The exception to this rule is property that had a named beneficiary or rights of survivorship. Examples of property that may have a named beneficiary would be a life insurance payout, a retirement account, or a bank account with a “pay on death” designation. An example of property with rights of survivorship would be real estate that has a deed indicating that a surviving co-owner will take the full ownership of the property upon the death of the other owner. Property purchased by a husband and wife typically has rights of survivorship in Florida, even if that specific language does not appear on the deed to the property. This type of survivorship is called “tenancy by the entirety,” and only requires that title be held by husband and wife, in which case, the deed will automatically transfer to the survivor upon the death of one spouse.

If an asset does not have a named beneficiary or rights of survivorship, it will have to go through probate to change ownership pursuant to the Florida Probate Rules (2022). The most common assets that go through this process are bank accounts, real estate, vehicles, and personal property. To determine if a specific financial account is subject to probate, the financial institution should be contacted. To determine if real estate is subject to probate, an attorney should examine the deed to the property.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more.

Probate, also called “estate administration,” is a court process that transfers assets owned by a deceased person to the beneficiaries named in their Will.

In probate, the person who died is referred to as the “decedent.” Anything that the decedent owned when they died is collectively referred to as the “estate.” An estate may contain bank accounts, real estate, vehicles, tools, jewelry, art, guns or any other personal property owned at the time of death.

Probate is required even when a decedent has a valid Will. When someone dies with a Will, a probate judge must “admit the Will” to probate by finding that the will is valid. If the decedent died without a Will, otherwise known as “intestate”, the probate will proceed and assets will be distributed to the next of kin.

In legal terms, “beneficiaries” are people named in a will, and “heirs” are the next of kin who receive property in the absence of a will. Whether a decedent died with or without a will, the court’s main priority is to ensure that the correct beneficiaries/heirs are identified to receive the decedent’s property.

If a decedent had a valid Will, that document nominates who will be the “Personal Representative.” The Personal Representative must be represented by an Attorney and is responsible for overseeing the probate process and distributing the assets to the beneficiaries.

There are two types of probate administration in Florida, formal administration and summary administration. Summary administration is a simpler process, while formal administration is required for certain estates that need the services of a personal representative or are too large for summary administration. The differences between these two types of probate proceedings are outlined for you later in this guide.

When the beneficiaries or heirs of the decedent’s estate are identified and the correct probate documents are submitted to the court, the judge will sign orders allowing the estate assets to be transferred. Prior to property being distributed, the probate judge must be satisfied that all interested parties have received proper notice, that eligible estate creditors have been paid, and that any disputes among the beneficiaries are resolved.

Chapters 731-735 of the Florida Statutes contain the probate laws for our state, however each county in Florida has specific requirements that must be met before the probate court will allow a case to move forward.

The Covid-19 pandemic has changed the way that most probate courts operate, many judges now hold hearings by video conference.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more.

Do You Need a Revocable Trust?

Everyone should have a durable power of attorney that appoints someone to act for them should they become incapacitated, however, in some circumstances it is not enough. In these cases, a revocable trust can help.

A durable power of attorney allows you to appoint someone you trust to step in for you to handle financial and legal matters if you become incapacitated. Everyone is at risk of incapacity from illness or injury, whether temporary or permanent. The current state of the world, global pandemic raises this risk and of course, this risk rises as we get older. Without someone in place to handle legal and financial matters, bills can go unpaid, contracts can’t be signed, homes can’t be refinanced, leases can’t be terminated, investments go unmonitored and unadjusted, and families often fight over who is in charge.

The alternative is your family or loved ones seeking court-appointed conservatorship. This is expensive and time-consuming. It is in everyone’s best interest that you pick your own person for this role.

While this is important, it’s not always enough. Financial institutions often don’t honor older powers of attorney and agents sometimes don’t step in until it’s too late. These problems can be remedied through the use of a revocable trust.

Powers of Attorney Can Be Rejected
Financial institutions often reject older powers of attorney; they have no way to know whether the document has been revoked since its original signature. Sometimes the institution will require the drafting attorney to attest to the fact that the document hasn’t been revoked. The attorney may not have met with the client for many years and has no way of knowing everything the client has done during that time.

Financial institutions are uncomfortable honoring powers of attorney because they do not want to be held liable for any malfeasance by the agent appointed under the document. Most estate planning attorneys agree that this institutional rejection is contrary to the law. There is no good remedy for this situation when it occurs, filing a lawsuit against a large bank is expensive and would be time-consuming.

Refresh your documents periodically. Financial institutions are more likely to accept newer documents than older ones. It’s a good idea to execute new durable powers of attorney every five years.

Use the financial institution’s forms. Many banks and investment companies have developed their own durable power of attorney forms. They are more comfortable accepting their own forms than general ones you may have found online or the one your attorney prepared. Contact each financial institution where you have an account and ask whether it has a durable power of attorney form. You will still need a general durable power of attorney since the financial institution’s form only governs accounts held at that institution.

Create a revocable trust. Financial institutions accept revocable trusts more easily than a durable power of attorney. Revocable trusts have the added advantage that you can appoint a co-trustee to serve with you so that if you become incapacitated, the co-trustee can step in and act.

As we age, we all become increasingly susceptible to making financial mistakes and falling victim to scammers. Having a financial advocate in place can help you avoid both. An important step is to name an agent under a durable power of attorney. However, such agents often don’t step in until it’s too late and you or a loved one may have already lost a significant amount of money.

A co-trustee on a revocable trust is already named on the accounts in trust. Even if the co-trustee doesn’t take an active role, he or she can monitor the accounts to make sure nothing strange is occurring. When and if it’s necessary to step in, the co-trustee can do so immediately and seamlessly. In contrast, an agent under a durable power of attorney must present credentials to the financial institutions and go through the institution’s vetting procedure, this delays access to the accounts.

For these reasons, revocable trusts often work better than durable powers of attorney. However, be aware trusts only control the accounts actually held by them. So, for the trust to work, you must retitle your accounts into your trust.

Even if you have a revocable trust, you still need a durable power of attorney. This will cover any accounts that were not transferred into the trust. Also, the trust only governs financial matters. Your agent under your durable power of attorney can also handle legal ones on your behalf, including signing your income tax returns.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more.

Estate plans should evolve over time, it is important to keep your living documents current by reviewing your estate plan every 5 years, or whenever you or your family or beneficiaries have a major life event.

The following points should be reviewed with your attorney.

DISTRIBUTION OF YOUR ESTATE

Does your plan effectively distribute your assets according to your wishes?

Do you have distribution provisions for your spouse?

What are the distribution provisions for your children? Should assets pass outright to your children or stay in trust for a longer period of time? If you decide on a continuing trust for a child, consider whether distributions should be staggered over time or whether the trust should be drafted to protect family assets from your children’s future creditors, including a divorcing spouse.

Do you want to include a trust for your grandchildren in your estate plan?

Do you hav a disabled beneficiary to consider? Do you need to incorporate special needs trust provisions for them to preserve the beneficiary’s eligibility for public benefits.

FIDUCIARY NOMINATIONS

Are you happy with your current choices for Personal Representative and Successor Trustee.

PLANNING FOR INCAPACITY

Is it time to update your Durable Power of Attorney and Health Care Proxy. Discuss the individuals you want to serve as your agents in these documents, as well as alternate agents.

TITLING AND BENEFICIARY DESIGNATIONS

What is the appropriate titling and/or beneficiary designations on your assets and accounts?

What assets should be owned by your Revocable Trust and how to effectively transfer ownership of assets into the name of the Trust (or how to designate the Trust as the transfer-on-death beneficiary).

Review the beneficiary designation for all your retirement accounts. Consider whether it is appropriate to leave retirement accounts directly to your spouse and/or children, or to your Revocable Trust so that the Trustees can administer the assets. Discuss whether your Revocable Trust qualifies for the maximum payout period for a beneficiary under the SECURE Act, which became effective January 1, 2020.

It is important to keep your estate plan up to date to ensure that your wishes are carried out.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more. We are currently offering free consultations via video conference to assist you with your needs.

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

Have you ever wondered how you can be more environmentally conscious even in death? In some states, you can, by being composted. Seth Viddal and one of his employees have built a “vessel they hope will usher in a more environmentally friendly era of mortuary science that includes the natural organic reduction of human remains, also known as body composting.”

According to Viddal, who compared the process to backyard composting of food scraps and yard waste, “It’s a natural process where the body is returned to an elemental level over a short period of time. . .This is the same process but done with a human body inside of a vessel, and in our case, in a controlled environment.”

On Sept. 7, Colorado became the second state after Washington to allow human body composting. Oregon will allow the practice beginning next July. In Washington, the three businesses licensed to compost human remains have transformed at least 85 bodies since the law took effect in May 2020, and more than 900 people have signed up for the service as natural funerals become more popular.

Viddal, who co-owns The Natural Funeral in Lafayette, lobbied the Colorado legislature for the option and started building a prototype vessel in an industrial area soon after the bipartisan bill was signed into law. Based on a design being used in Washington, the insulated wooden box is about 7 feet long, 3 feet wide, and 3 feet deep, lined with waterproof roofing material and packed with wood chips and straw. Two large spool wheels on either end allow it to be rolled across the floor, providing the oxygenation, agitation, and absorption required for a body to compost.

Viddal calls the process an “exciting ecological option,” and in death, he also sees life. “Composting itself is a very living function and it’s performed by living organisms. … There are billions of microbial, living things in our digestive tracts and just contained in our body. And when our one life ceases, the life of those microbes does not cease,” he said.

After about three months, the vessel is opened and the “soil” is filtered for medical devices like prosthetics, pacemakers, and things of that nature. The remaining large bones are then pulverized and returned to the vessel for another three months of composting. Teeth are removed to prevent contamination from mercury in fillings. The vessel must reach 131 degrees Fahrenheit (55 Celsius) for 72 continuous hours to kill any bacteria and pathogens. The high temperature occurs naturally during the breakdown of the body in an enclosed box.

In six months, the body, wood chips, and straw will transform into enough soil to fill the bed of a pickup truck. Family members can keep the soil to spread in their yards, but Colorado law forbids selling it and using it commercially to grow food for human consumption and only allows licensed funeral homes and crematories to compost human bodies.

Would you consider body composting? Get more information here.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more. We are currently offering free consultations via video conference to assist you with your needs.

No one wants to think about dying and for some of us, death is a subject that we would rather not discuss. We believe that there is no hurry to consider the issue and that we have plenty of time left. However, this line of thinking about end-of-life matters can often result in delaying dong the mechanics of it until it is too late.

Your will is not merely a legal document. It is an expression of your wishes and it is also a way for us to continue providing for our loved ones even after we are gone. Even without a Will, there are default rules that will apply to distribute your estate. These rules are in most cases cast in stone and may not take into account the specific needs and circumstances of our chosen beneficiaries. Caring and loving our family should not stop with our death, we can easily create legal documents including a will that will ensure our wishes are carried out. A will is an easy way to look after our loved ones when we are gone.

The entire process can be overwhelming, it is important to have a board-certified estate planning attorney involved to ensure all aspects of the estate plan are followed.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more. We are currently offering free consultations via video conference to assist you with your needs.

The loss of a family member is an incredibly difficult time. In addition to coping with your grief and potentially planning a memorial service or funeral, there are usually many financial decisions that will need to be made.

How do you know what you’re supposed to do? It can be incredibly overwhelming. Here is a list of steps to help reduce stress during this time.

Contact your financial advisor so they can help you evaluate the financial aspects of the situation.
Also, contact the person’s estate attorney to see if they have an estate plan. This might include a will and revocable trust, for example. The attorney should be able to tell you if there is an:
- Executor of the will and who it is
- Trustee of any trusts that exist
- A guardian for the care of a child and financial management while the child is a minor
Keep track of your phone calls and contacts (e.g., dates, times, status) in an online document or notebook. It will be helpful to find the individual’s passwords and have them in one place.
Locate a local notary, as they will be needed, the attorney’s office may have a notary available.
Obtain multiple copies of the certified death certificate. Some companies will not accept a photocopy. This is common with insurance policies and annuity contracts, and transfer of deeds for example.
Obtain a certificate of appointment to document the authority to act as personal representative, if required in your state. Keep in mind that language used to describe aspects of settling an estate can vary in each state.
Open an estate checking account, if necessary, to pay bills and receive accounts/assets associated with settling the estate. If you open a checking account for the estate, you’ll need to get an employer identification number through IRS Form SS-4, Application for Employer Identification Number.
Determine how the person’s assets/property will be maintained during the estate settlement process.
Contact the Social Security Administration. Inquire about survivors’ benefits. You might also be eligible for a one-time death payment.
Look into veterans’ benefits (if applicable) and possible assistance with burials costs for veterans and their spouses.
Contact financial organizations to find out how to update ownership and beneficiary designations on joint financial accounts (investment, bank, and credit accounts).
Contact financial organizations to determine how to close single-owner financial accounts and transfer assets.
Update names and beneficiaries on insurance policies, including life, health, and auto policies. Among the insurance providers, also confirm the coverage requirements to maintain the person’s assets (including the car).
Update the property title(s) for real estate. If property was owned in multiple states, review the probate process in each state. (For non-resident states, ancillary probate may be necessary.)
Contact a deceased spouse’s employer (if applicable) if there is a 401(k) account and a group insurance policy. It may also be necessary to contact former employers that may have provided a group life insurance policy. The person may also have retirement plans through former employers.
Contact all three major credit bureaus to minimize the risk of identity theft.
Locate the title and registration for any cars, so that you can update the vehicle title and registration; cancel the driver’s license.
Close email and social media accounts.
If the deceased is a spouse then the surviving spouse previously named their now-deceased spouse as their durable power of attorney or medical power of attorney, they will need to name a new person.

The entire process can be overwhelming, it is important to have a board-certified estate planning attorney involved to ensure all aspects of the estate plan are followed.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more. We are currently offering free consultations via video conference to assist you with your needs.

Contact Us

Port Orange Office:
Prestige Executive Center
823 Dunlawton Ave. Unit C
Port Orange, FL 32129
Local: 386.256.4882
Toll Free: 877.447.4667

New Smyrna Beach Office:
817 E. 7th Ave
New Smyrna Beach FL, 32169
Local: 386.256.4882
Toll Free: 877.447.4667